Judges: Easterbrook
Filed: Aug. 23, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3093 IN THE MATTER OF: JERRY DEAN FERGUSON and JULIE RENE FERGUSON, Debtors. APPEAL OF: WEST CENTRAL FS, INC. _ Appeal from the United States District Court for the Central District of Illinois. No. 14-1071 — James E. Shadid, Chief Judge. _ ARGUED FEBRUARY 24, 2016 — DECIDED AUGUST 23, 2016 _ Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. Jerry and Julie Ferguson proposed a plan to repay
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3093 IN THE MATTER OF: JERRY DEAN FERGUSON and JULIE RENE FERGUSON, Debtors. APPEAL OF: WEST CENTRAL FS, INC. _ Appeal from the United States District Court for the Central District of Illinois. No. 14-1071 — James E. Shadid, Chief Judge. _ ARGUED FEBRUARY 24, 2016 — DECIDED AUGUST 23, 2016 _ Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. Jerry and Julie Ferguson proposed a plan to repay ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3093
IN THE MATTER OF:
JERRY DEAN FERGUSON and JULIE RENE FERGUSON,
Debtors.
APPEAL OF:
WEST CENTRAL FS, INC.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 14‐1071 — James E. Shadid, Chief Judge.
____________________
ARGUED FEBRUARY 24, 2016 — DECIDED AUGUST 23, 2016
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Jerry and Julie Ferguson
proposed a plan to repay the debts on their family farm un‐
der Chapter 12 of the Bankruptcy Code. This appeal con‐
cerns two of those debts: (a) a loan of $300,000 from First
Community Bank, secured by a mortgage on the farm plus a
lien on the Fergusons’ farming equipment and crops, and (b)
2 No. 15‐3093
a loan of $176,000 from West Central FS, secured by a junior
lien on the equipment and crops.
The bankruptcy judge approved a sale of the equipment
and crops, which yielded $238,000. The Bank, as the senior
creditor, demanded those proceeds. But West Central offered
an idea that would protect its own security interest: require
the Bank to recoup its loan via the mortgage, which would
allow West Central to be repaid from the sale of equipment
and crops. Both secured creditors would be made whole.
This remedy is called marshaling. It is not mentioned in the
Bankruptcy Code, but the Supreme Court has said that
bankruptcy courts should apply the doctrine according to
state law. Meyer v. United States, 375 U.S. 233 (1963); see also
Butner v. United States, 440 U.S. 48 (1979).
The Fergusons wanted to keep their farm—Chapter 12
provides for reorganization, not liquidation—which made
Bankruptcy Judge Perkins reluctant to order foreclosure. Re‐
covering from the farmland without foreclosure—that is, col‐
lecting monthly mortgage payments for years to come—
would unnecessarily delay the Bank’s recouping its loan, the
judge wrote. 2011 Bankr. LEXIS 4581 (Bankr. C.D. Ill. Nov. 28,
2011). The judge rejected West Central’s proposal and
awarded the $238,000 to the Bank, though he noted that he
might reconsider his decision if the farm were sold.
When the parties to the bankruptcy could not agree on a
repayment plan, the judge converted the case to a liquida‐
tion under Chapter 7 and appointed a trustee. The trustee
sold the farm for $411,000 and paid the Bank the balance of
its claim. About $261,000 remains to be divvied up, and West
Central wants to be treated as a secured creditor.
No. 15‐3093 3
When a senior creditor can seek repayment from sources
A and B, and a junior creditor from only B, marshaling un‐
der Illinois law allows a court to order the senior creditor to
recover from A so long as that wouldn’t harm the senior
creditor. See, e.g., Wyman v. Fort Dearborn National Bank, 181
Ill. 279 (1899). The judge initially denied West Central’s re‐
quest because he thought that marshaling would have
harmed the senior creditor.
After the bankruptcy was converted to a liquidation,
West Central repeated its request for marshaling. That rem‐
edy would have been appropriate after all, it maintained, be‐
cause the farm has been sold and the Bank repaid. Marshal‐
ing could be applied in retrospect by treating the Bank’s re‐
covery as having come from the sale of the farmland, and
treating $238,000 of the money now in the estate as having
come from the equipment and crops. Money is fungible,
West Central reasoned, so why not use this accounting
method to satisfy both secured creditors?
Though the Bank no longer has an interest in fighting
marshaling (after all, it has been paid in full), the Internal
Revenue Service does. The sale of equipment and crops gen‐
erated big tax bills: over $200,000 that the Fergusons owe to
the federal and Illinois treasuries. The tax collectors get pri‐
ority among unsecured creditors under 11 U.S.C. §507(a)(8),
which means that West Central’s status—it would be a se‐
cured creditor with marshaling, or a general unsecured cred‐
itor without it—determines whether the taxes will be paid
during the bankruptcy. Because the tax debts are not dis‐
chargeable, see 11 U.S.C. §523(a)(1)(A), the Fergusons also
oppose marshaling—they aren’t going to get any money
from the sales, so they’d prefer satisfying the creditors with
4 No. 15‐3093
the statutory right to haunt them after bankruptcy. The trus‐
tee, who represents the interests of unsecured creditors, also
opposes marshaling.
The bankruptcy judge approved West Central’s second
request. 2013 Bankr. LEXIS 3386 (Bankr. C.D. Ill. Aug. 20,
2013). The judge wrote that he would have approved the
original request had he known that the farm was going to be
sold, and he saw no obstacle to applying the equitable reme‐
dy three years later. In a separate order he awarded West
Central post‐petition interest on its claim. 2014 Bankr. LEXIS
2676 (Bankr. C.D. Ill. June 18, 2014). As an oversecured credi‐
tor West Central is entitled to interest while the bankruptcy
is pending, but even with interest it cannot receive more
than the value of its collateral. 11 U.S.C. §506(b). Interest has
taken its claim from $176,000 to $250,000, so the judge
awarded West Central the value of the collateral—$238,000.
The United States, the trustee, and the Fergusons ap‐
pealed to the district court, which reversed and remanded.
2015 U.S. Dist. LEXIS 121096 (C.D. Ill. Sept. 11, 2015). The
court held that marshaling is proper only if two funds exist
simultaneously. Because the money from one fund (the pro‐
ceeds from the equipment and crops) had been paid out
years ago, only the other fund (the proceeds from the land)
still exists. Seeing no precedent in Illinois to support West
Central’s proposal, the district court told the bankruptcy
judge to resolve the case without marshaling.
West Central has appealed, asking us to reinstate the
bankruptcy court’s decision. But first we must decide wheth‐
er we have jurisdiction.
No. 15‐3093 5
In bankruptcy cases this court has jurisdiction over ap‐
peals from “final decisions, judgments, orders, and decrees”
of the district court. 28 U.S.C. §158(d)(1). (Subsection (d)(2)
gives us discretion to accept interlocutory appeals certified
as meeting certain prerequisites, but no one has requested
such an appeal.) It isn’t enough, then, to say that the bank‐
ruptcy court’s order was final—we must consider the district
court’s order. That inquiry may be straightforward when the
district court affirms a final order of the bankruptcy court;
not so when the district court remands a case, as it did here.
A remand is not final, and therefore is not appealable, unless
only ministerial acts remain for the bankruptcy court. See,
e.g., In re Rockford Products Corp., 741 F.3d 730, 733 (7th Cir.
2013); In re XMH Corp., 647 F.3d 690, 693–94 (7th Cir. 2011).
So we asked at oral argument: What will or must the bank‐
ruptcy court do on remand? As far as we can tell—even with
the benefit of the parties’ supplemental memoranda—no one
is sure.
The question eludes West Central. Its memo discusses
only the finality of the bankruptcy court’s order. The joint
memo of the United States and the trustee also focuses on
the bankruptcy court’s order. The Fergusons’ memo is super‐
ficially more helpful: it says that “only ministerial matters”
are left to be resolved. But it does not explain why, and when
a court needs facts it can ignore naked conclusions such as
this one.
Our review of the record, including the most recent pro‐
posed distribution (filed February 5, 2014) leaves us unsure
what will happen on remand. We expect that the trustee will
propose allocating $26,000 in compensation and expenses for
herself and $208,000 to pay the tax collectors. That would
6 No. 15‐3093
leave $27,000 for the unsecured creditors, whose allowed
claims (including West Central’s) total $246,000.
No unsecured creditor (other than West Central, which
was treated as secured at the time) objected to the most re‐
cent proposed distribution before the deadline that the bank‐
ruptcy judge set. Arguments that could have been raised ear‐
lier are forfeited on remand, but it isn’t surprising that no
one objected to claims of the unsecured creditors—the estate
was $149,000 short of having anything to distribute to them.
Objecting to an unsecured claim would have been a futile
exercise because it could not have changed the distribution.
While the Bankruptcy Code and corresponding procedural
rules mandate deadlines for some objections, see, e.g., Taylor
v. Freeland & Kronz, 503 U.S. 638 (1992) (deadline to object to
debtor’s claimed exemptions under 11 U.S.C. §522(l) and
Fed. R. Bankr. P. 4003(b)), they don’t do so for objections to
claims or to proposed distributions. See Schwab v. Reilly, 560
U.S. 770 (2010). A new proposal provides a new opportunity
for the judge to consider objections. And no party has told us
that there will be no objections.
The trustee suggested to the district judge that West Cen‐
tral would get about $17,000 without marshaling. By our cal‐
culations, West Central’s pro rata share if there are no objec‐
tions will be more than $19,000. This difference doesn’t look
like a rounding error, though we don’t know how the trustee
got to $17,000. That’s because she didn’t take advantage of
the opportunity we gave her to explain what the distribution
will be on remand. Neither did any of the other parties. We
therefore cannot treat the remand as a final decision.
The United States contends that West Central’s request
for marshaling is a “discrete dispute,” appealable as soon as
No. 15‐3093 7
it is decided without regard to ordinary notions of finality.
Indeed, every “core proceeding” listed in 28 U.S.C. §157(b),
the United States suggests, is a dispute that may be appealed
piecemeal. This confuses disputes with issues.
The Supreme Court clarified those terms last year in
Bullard v. Blue Hills Bank, 135 S. Ct. 1686 (2015). The debtor in
that case proposed a plan to repay his debts, but the bank‐
ruptcy court refused to confirm the proposal and told the
debtor to come up with a new plan. The debtor appealed,
noting that “confirmations of plans” are on the list of core
proceedings, §157(b)(2)(L). When a judge rejects a plan, the
debtor argued, that ends the “dispute” over whether to con‐
firm that plan and is appealable.
The Supreme Court unanimously rejected that view. The
dispute in Bullard was over how the debts would be repaid.
Whether a particular plan would appropriately resolve that
dispute is an issue. And deciding an issue without resolving
the underlying dispute, the Court held, is not final.
Here the parties contest how the remaining $261,000
should be divided. West Central offered an argument that
would have resolved that dispute, but the district court re‐
jected it. The issue of marshaling has been finally resolved in
the district court, but the dispute—Who gets how much
money?—remains open. And according to Bullard it’s the
dispute that matters to appellate jurisdiction.
Imagine that West Central had made alternative argu‐
ments to resolve the estate’s disbursement: the Bank’s lien
was invalid, or if it wasn’t then the liens should be mar‐
shaled, or if not then the Bank’s lien should be equitably sub‐
rogated. And imagine that the bankruptcy court had decided
8 No. 15‐3093
these questions one at a time over the course of a few weeks.
The United States believes that each decision would be a fi‐
nal resolution of a “discrete dispute” that could be appealed.
The Solicitor General made just this argument in Bullard; the
Court labeled it “implausible.” 135 S. Ct. at 1694.
West Central makes hay of a case, In re Bulk Petroleum
Corp., 796 F.3d 667 (7th Cir. 2015), in which we identified a
dispute narrower than the final distribution of the estate. But
the parties to Bulk Petroleum had stipulated that there would
be no further arguments between them once the appeal was
resolved—the entire contested amount belonged either to
the estate or the creditor, and the appeal would fix the par‐
ties’ rights to the money. Cf. Bullard, 135 S. Ct. at 1692–93.
There was no chance that the dispute would return to us on
a successive appeal. Here the parties have had multiple
chances to stipulate similarly. They haven’t. That leaves us to
wonder what they have in store for the bankruptcy court
now.
Every litigant tells us that Bullard is inapplicable because
it involved a filing under Chapter 13. But Bullard interprets
§158, which sets out the rules of appellate jurisdiction for
bankruptcy cases—all bankruptcy cases. The parties offer no
argument that §158 bears a distinct meaning for each chapter
of the Bankruptcy Code. Bullard interprets §158, which ap‐
plies to this appeal no less than to a Chapter 13 proceeding.
This appeal is dismissed for want of jurisdiction.